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The Dubious Legal Rationale for Denying Copyright to Fashion

This essay clarifies the useful article doctrine and argues that it does not, as clarified, bar copyright for fanciful clothing. Clarification is necessary because the drafters of the 1976 Act botched their attempt to codify the doctrine. As written, the Act denies copyright to a useful article unless its aesthetic features are separable from its utilitarian function. Separability, however, is irrelevant. What matters is whether the article has unconstrained features. The features of many fanciful garments are unconstrained enough for copyright. Indeed, they are more unconstrained than the features of other useful articles that courts already protect.